GURU DAYAL AND ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 26-2-1982 passed by Sessions Judge, Jhunjhunu, convicting the accused appellants under Sec. 304 Part II I.P.C. and sentencing them to 21/2 years' rigorous imprisonment with a fine of Rs. 1,000.00 each and in default of payment of fine to further undergo one year's rigorous imprisonment.

(2.) The brief facts giving rise to this appeal are that on 18-11-1981 at about 8 P. M. a first information report was filed by one Mala Ram son of Chandra Ram Meena resident of Gobla at Police Station, Chidawa that when he was going to the field of his brother Govindram, who was living in a small hut in the field, in the morning at about 8 A.M., when he reached near the field of Guru Dayal he saw that accused Guru Dayal, Har Lal and Mukanda belabouring Govind Ram with lathis and Jelly. It is alleged that out of fear he did not go near them and rushed to the well of one Ram Kumar and Girdhari. Where he found Samunder and Ramkumar. Both of them told him that Guru Dayal, Harlal and Mukandaram had tied the hands of Govindram and carried him and they were saying that they were do away with him. It is alleged that he from another way went to the village Gobla and there he found Govindram, his brother, laying near the Chauraha of bus-stand under the Pipal tree. It is alleged that Govindram was semi-conscious and he was saying that Guru Dayal. Harlal and Mukanda have belaboured him. It is alleged that he served him a cup of tea. He further stated that the accused persons along with Sarpanch came at the plate where Govindram was lying and desired that a compromise may be worked out. But he declined to compromise the matter. But some-how forcibly they got the thumb impression of Govindram on the document. It is alleged that after leaving the injured Govindram at the scene he has come to file the present first information report. It is alleged that Govindram has died at about 4 P.M. On the basis of this information, a case under Sec. 302 read with Sec. 34 I.P.C. was registered against the accused persons. The police took up the investigation and prepared the necessary documents. After the close of the investigation the police filed a challan in the concerned court. Ultimately the case was committed to the Court of Sessions and came to be disposed of by the learned Sessions Judge, Jhunjhunu. The prosecution has examined as many as 9 witnesses and produced a large number of documents in order to substantiate the allegations. The learned Sessions Judge relied upon the statements of P.W. 7 Mala Ram. brother of the deceased sole eye-witness of the incident and P.W. 3 Jagdish son of deceased Govindram and sentenced the accused persons as aforesaid. Hence, the present appeal.

(3.) Learned counsel for the appellants submitted that in the present case the sole eye-witness is P.W.7 Malaram. Learned counsel submitted that the testimony of Malaram. who is brother of deceased, is not wholly truthful. Therefore. no conviction on that basis can be sustained. Learned counsel further submitted that the testimony of P.W. 3 Jagdish son of deceased Govindram before whom it is alleged that the deceased Govindram has made a dying declaration implicating the three accused persons is also not reliable as P.W. 3 Jagdish reached at the scene of occurrence after Govindram expired. Thus, the learned counsel for the appellants submitted that the testimony of Jagdish is also not reliable.